[Fedora-legal-list] Fedora and MS-PL (Dynamic Language Runtime)
C.J. Adams-Collier
cjac at colliertech.org
Sun Dec 6 23:32:36 UTC 2009
On Sat, 2009-12-05 at 13:31 -0500,
saulgoode at flashingtwelve.brickfilms.com wrote:
> I apologize if resurrecting such an old thread is considered poor
> etiquette for this list; however, it seems that the discussion in this
> thread served as a predicate for the MS-PL being deemed acceptable for
> inclusion in Fedora[1], and I wish to raise a question about that
> decision[2].
I didn't know that. I'm glad it has had such an effect.
> While the discussion in this thread effectively addressed the
> incompatibility between the Microsoft Public License and GNU's General
> Public license, it focused upon terms of the GPL and whether they
> might preclude inclusion of MS-PLed code in Fedora. I feel it is far
> more incumbent to examine the terms and conditions of the MS-PL and
> consider whether those terms can be satisfied should both MS-PLed code
> and GPLed code be provided together on a CD/DVD or in a corresponding
> ISO file.
I'm not certain how they are mutually exclusive aside from where
inter-linking within the same application is concerned...
> In brief, my concern lies with the fact that there is no explicit
> exception included in the MS-PL for "collective works" or
> "compilations" as defined under U.S. copyright law[3]; instead the
> MS-PL is based[4] upon the U.S. Copyright Act's definition of
> "derivative works"[5] and a license-explicit definition of a
> "contribution"[6], and it claims for its applicable scope all
> derivative works of the contribution.
I still do not see how this applies to applications which do not link
between one another, unless you are implying that an .iso file is not a
collection of separate works, but is instead a work in itself. If this
is the case, then MS-PL and GPL are the least of our problems. We run
into issues with OpenSSL licenses, LGPL vs GPL, etc. I think the fact
that this has not been a problem implies that an .iso is not considered
a single work, but a collection.
> This is problematic for a Fedora distribution because, though Fedora
> should rightly fit the definition for a "compilation", it may still
> qualify as a "derivative work" as those terms are defined in the U.S.
> Copyright Act. The two classifications are not of necessity mutually
> exclusive; as stated in the congressional footnotes to the Copyright
> Act[7]:
>
> "Between them the terms 'compilations' and 'derivative works'
> which are defined in section 101, comprehend every copyrightable
> work that employs preexisting material or data of any kind.
> THERE IS NECESSARILY SOME OVERLAPPING BETWEEN THE TWO, but they
> basically represent different concepts." (emphasis mine)
>
> Further coverage of the legal uncertainty at to whether a compilation
> (or even collective work) can be considered a derivative work can be
> found in the Copyright Office's "Copyright Registration for Derivative
> Works" circular[8 (PDF)], and in the first chapter[9] of Lee A.
> Hollaar's "Legal Protection of Digital Information".
>
> Though I am an engineer (not a lawyer), it seems the distinction being
> made in the Copyright Act phraseology is owing to the legislature's
> desire to clarify the durations and protections of copyright obtained
> in the constituent parts of a collection or compilation, and not a
> presumption of the law to interfere with the exclusive rights of the
> copyright holder to decide the terms and scope under which his work
> might be licensed. In other words, I find it entirely conceivable that
> a court would find that it is within an author's rights to prohibit
> distribution of his work in collections/compilations containing other
> works which the author may find objectionable.
As I said above, if this is the case, we'd better stop shipping software
collections on iso files ;)
> While my interpretation is by no means conclusive (and certainly not
> authoritative), it should be noted that it is this legal uncertainty
> which has prompted other reciprocal licenses to provide explicit
> exceptions for "collective works". This is addressed employing the
> term "mere aggregation" in Section 3 of the GPLv2[10], and the term
> "aggregate" in Section 5 of the GPLv3[11] and in Section 7 of the GNU
> Free Document License[12]. It is addressed in the Creative Commons
> Share-Alike by providing a license-specific definition of a
> "collection" and exempting such collections from reciprocity terms[13].
>
> I won't speculate as to whether it was the intent of the authors of
> the Microsoft Public License to consider "mere aggregation" to be
> excluded from the scope of their reciprocal terms and conditions[14],
> but regardless of their intent it seems that lack of an exception
> being explicitly provided within the license itself may potentially
> lead to a court decision that inclusion of both MS-PLed and GPLed
> software within a Fedora distribution constitutes copyright
> infringement -- not because the terms of the GPL weren't met, but that
> those of the MS-PL were not met.
>
> Any clarification on this issue would be appreciated.
>
> Regards.
>
>
>
> ----------------------------------
> [1] http://fedoraproject.org/wiki/Licensing#Software_License_List
> MS-PL listed under "Software Licenses that are OK for Fedora"
>
> [2]
> https://www.redhat.com/archives/fedora-legal-list/2009-August/msg00017.html
> "The MS Public License is acceptable for Fedora, Free but GPL
> incompatible. I'm adding it to the table now." -- Tom Calloway
>
> [3] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html
> "A 'collective work' is a work, such as a periodical issue, anthology,
> or encyclopedia, in which a number of contributions, constituting
> separate and independent works in themselves, are assembled into a
> collective whole.
> "A 'compilation' is a work formed by the collection and assembling of
> preexisting materials or of data that are selected, coordinated, or
> arranged in such a way that the resulting work as a whole constitutes
> an original work of authorship. The term 'compilation' includes
> collective works." -- USC Title 17 Section 101
>
> [4] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL
> "The terms 'reproduce', 'reproduction', 'derivative works', and
> 'distribution' have the same meaning here as under U.S. copyright
> law." -- MS-PL: Definitions
>
> [5] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html
> "A 'derivative work' is a work based upon one or more preexisting
> works, such as a translation, musical arrangement, dramatization,
> fictionalization, motion picture version, sound recording, art
> reproduction, abridgment, condensation, or any other form in which
> a work may be recast, transformed, or adapted. A work consisting of
> editorial revisions, annotations, elaborations, or other
> modifications which, as a whole, represent an original work of
> authorship, is a 'derivative work'." -- USC Title 17 Section 101
>
> [6] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL
> "A 'contribution' is the original software, or any additions or
> changes to the software." -- MS-PL: Definitions
>
> [7] http://digital-law-online.info/lpdi1.0/treatise6.html
> "Between them the terms 'compilations' and 'derivative works'
> which are defined in section 101, comprehend every copyrightable
> work that employs preexisting material or data of any kind.
> There is necessarily some overlapping between the two, but they
> basically represent different concepts. A ?compilation? results
> from a process of selecting, bringing together, organizing, and
> arranging previously existing material of all kinds, regardless
> of whether the individual items in the material have been or ever
> could have been subject to copyright. A ?derivative work,? on the
> other hand, requires a process of recasting, transforming, or
> adapting ?one or more preexisting works?; the ?preexisting work?
> must come within the general subject matter of copyright set
> forth in section 102, regardless of whether it is or was ever
> copyrighted." FN31: H.R. Rep. No. 94-1476
>
> [8] http://www.copyright.gov/circs/circ14.html
>
> [9] http://digital-law-online.info/lpdi1.0/treatise6.html
>
> [10] http://www.gnu.org/licenses/old-licenses/gpl-2.0.html
> "In addition, mere aggregation of another work not based on
> the Program with the Program (or with a work based on the
> Program) on a volume of a storage or distribution medium
> does not bring the other work under the scope of this
> License." -- GPLv2
>
> [11] http://www.gnu.org/licenses/gpl.html
> "Inclusion of a covered work in an aggregate does not cause this
> License to apply to the other parts of the aggregate." -- GPLv3
>
> [12] http://www.gnu.org/licenses/fdl.html
> "When the Document is included in an aggregate, this License
> does not apply to the other works in the aggregate which are not
> themselves derivative works of the Document." -- GFDL
>
> [13] http://creativecommons.org/licenses/by-sa/3.0/legalcode
> "A work that constitutes a Collection will not be considered
> an Adaptation (as defined below) for the purposes of this
> License." -- CC-SA
> [14] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL
> "If you distribute any portion of the software in source code
> form, you may do so only under this license by including a
> complete copy of this license with your distribution. If you
> distribute any portion of the software in compiled or object
> code form, you may only do so under a license that complies
> with this license." -- MS-PL Section 3d)
>
>
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